Steel Hill Development, Inc. v. Town of Sanbornton

• Decision Date: 24 November 1972
• Docket Number: No. 72-1234.,72-1234.
• Parties: STEEL HILL DEVELOPMENT, INC., Plaintiff, Appellant, v. TOWN OF SANBORNTON et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

469 F.2d 956 (1972)

STEEL HILL DEVELOPMENT, INC., Plaintiff, Appellant, v. TOWN OF SANBORNTON et al., Defendants, Appellees.

No. 72-1234.

United States Court of Appeals, First Circuit.

Heard October 5, 1972.

Decided November 24, 1972.

COPYRIGHT MATERIAL OMITTED

Peter B. Rotch, Manchester, N. H., with whom McLane, Carleton, Graf, Greene & Brown and Stanley M. Brown, Manchester, N. H., were on brief, for appellant.

Peter V. Millham, Laconia, N. H., with whom Wescott, Millham & Dyer, Laconia, N. H., was on brief, for appellees.

Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.

COFFIN, Chief Judge.

Located in the rolling hills of Belknap County, New Hampshire is the tiny town of Sanbornton with a year-round population of approximately 1,000 persons living in some 330 regular homes. Long popular as a major recreational and resort area, Belknap County commenced to share its rural beauty with visitors in considerably greater degree with the opening in the 1960's of Interstate Highway 93 which funneled droves of touring urbanites from the Boston area, one hundred miles away, into towns like Sanbornton. Since Sanbornton borders Lake Winnisquam, is within easy reach of Lake Winnipesaukee and affords simple access to most New Hampshire ski areas, it is no surprise that its summer population is about 2,000 persons, that it has around 400 seasonal homes, and now is afforded the unique opportunity to serve as a seasonal second home paradise for persons who would buy the proposed 500 to 515 family units planned by appellant Steel Hill Development, Inc. In short, as the district court stated, "this case reflects the current clash between those interested in opening up new and hitherto undeveloped land for sale and profit and those wishing to preserve the rural character of Northern New England and shield it from the relentless pressure of an affluent segment of our society seeking new areas for rest, recreation and year round living." Steel Hill Development, Inc. v. Town of Sanbornton, 338 F.Supp. 301, 302 (D.N.H.1972).

Steel Hill acquired its 510 acres in December 1969 and immediately began surveying the land, mapping the topography and creating plans for conventional and "cluster" development.¹ At that time, and until March 9, 1971 the entire Steel Hill tract was zoned as General Residence and Agricultural, requiring a minimum lot size of 35,000 square feet, or about three-fourths of an acre.² Desirous of effectuating the "cluster" plan which appellant knew would require amending the zoning ordinance, appellant engaged in extensive and cordial negotiations with the town planning board during 1970. In order to permit some development while the "cluster" concept was under consideration, the board accepted a plan for 50 conventional lots meeting the 35,000 square feet requirement and scheduled, according to usual practice, a public hearing on the matter. About one hundred townsfolk attending the meeting on November 13, 1970 expressed opposition to any development by Steel Hill. Nevertheless, the planning board later approved the subdivision plan for thirty-seven lots, in the face of a petition, presented by about thirty town residents, for zoning the entire town as six acre minimum lots. Because public interest had been heightened in preserving Sanbornton's "charm as a New England small town", the planning board then proposed amendments to the zoning ordinance designed to enlarge the Forest Conservation areas,³ and to establish separate General Residential Districts and Agricultural Districts, with increased minimum acreage requirements in these districts and in the Historical Preservation and the Recreational Districts. These were passed.⁴

As a result of the re-zoning, approximately 70 per cent of appellant's land is in the Forest Conservation District and 30 per cent in the Agricultural District. Clearly, its plans for "cluster" or conventional development are inconsistent with the new zoning ordinance. Appellant filed suit in the district court alleging that the three and six acre minimum lot size requirements are unconstitutional because they bear no rational relationship to the health, safety, morals or general welfare of the community and are therefore violative of N.H. R.S.A. 31:60 and the due process clause of the Fourteenth Amendment; that the rezoning greatly reduced the value of its land so as to constitute a taking without compensation; and that the classification of its land was violative of the equal protection clause of the Fourteenth Amendment because it was arbitrary and discriminatory in the restrictions imposed on development. The district court found adversely to appellant on all counts.

This court, like other federal and state courts throughout the country, finds itself caught up in the environmental revolution. Difficult and novel legal and factual questions are posed which require the resolution of conflicting economic, environmental, and human values. The problem inherent in quantifying a "way of life", Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971), or the beauty of an unspoiled mountain, Scenic Hudson Preservation Conference v. F. P. C., 354 F.2d 608 (2d Cir. 1965), may never be solvable with any degree of certitude. Thus basic value judgments will be made by legislatures and voters which courts can review in most instances not on the basis of the wisdom of these decisions, but rather only to determine whether they are permissible within the relevant statutory and constitutional framework. It was with these principles in mind that the district court tried the case, and we will not set aside its decision unless its findings of fact were clearly erroneous, United States v. Marshall, 391 F.2d 880 (1st Cir. 1968), Leach v. Crucible Center Co., 388 F.2d 176 (1st Cir. 1968), or unless there was an error of law.

New Hampshire, like most states, has granted authority to localities to zone in order to promote public health, safety, morals and general welfare. N.H. R.S.A. 31:60. A zoning ordinance under such a statute may not be declared unconstitutional unless its "provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L.Ed. 303 (1926); Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927). Thus a court does not sit as a super zoning board with power to act de novo, but rather has, in the absence of alleged racial or economic discrimination,⁵ a limited role of review.

The district court found that, as the Sanbornton Planning Board had itself determined, topography and soil conditions posed severe problems of pollution, improper sewage disposal, poor drainage and erosion to large-scale development of the Steel Hill tract, justifying imposition of the three-acre minimum lot size requirement in accordance with the public health. We have carefully read the conflicting trial testimony of the various experts who expressed an opinion on these matters and cannot say that the court's finding is clearly erroneous. In any event, appellant does not seem to challenge that ruling, but rather directs its argument to the unreasonableness of the six acre lot requirement.

The district court stated that it could not find the six acre requirement reasonable if only health and safety were considered, but that such requirement was reasonably related to the promotion of the general welfare of the community. N.H. R.S.A. ch. 31:60. The court considered the pollution of Lake Winnisquam, possible interference with smelt spawning in Black Brook, increased traffic problems inherent in large-scale development, and increased air pollution. Testimony of Planning Board members and citizens opposed to Steel Hill's plans additionally reveals a desire to discourage density of population, and most importantly, a fear of premature development which was manifested in this effort to provide for orderly growth of the unspoiled areas of the town in a logical way. Several witnesses testified that not only would the town's rural character be destroyed by Steel Hill's massive plans, which would, in effect, double the town's population, but that there could be immeasurable ecological harm.

Appellant relies heavily on National Land and Investment Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1965); Appeal of Kit-Mar Builders, 439 Pa. 466, 268 A.2d 765 (1970), and Board of County Supervisors of Fairfax County v. Carper, 200 Va. 653, 107 S.E.2d 390 (1959)⁶ for the proposition that Sanbornton may not use a zoning ordinance to avoid "the increased responsibilities and economic burdens which time and natural growth invariably bring." Kohn, supra, 215 A.2d at 610. Other cases which support this view include Appeal of Girsh, 437 Pa. 237, 263 A.2d 395 (1970); Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 254 A.2d 700 (1969); and Oakwood at Madison. This proposition, invulnerable in its cloak of generality, does not quite suit the present case. All these cases refer to an unnatural limiting of suburban expansion into towns in the path of population growth where a too restrictive view of the general welfare was taken. Comment, 50 Journal of Urban Law 129 (1972). Instead, appellant here does not seek to satisfy an already existing demand for suburban expansion, but rather seeks to create a demand in Sanbornton on behalf of wealthy residents of Megalopolis who might be willing to invest heavily in time and money to gain their own haven in bucolic surroundings. Note, 57 Iowa L.Rev. 126, 127 (1972). These different problems of suburban and rural expansion, their scientific and legal analyses, and their appropriate solutions cannot so easily be equated.

More appropriate to appellant's argument, and not cited to us, is Kavanewsky v. Zoning Board of Appeals of Town of Warren, 160 Conn. 397, 279 A.2d 567 (1971), where the town, when threatened with rapid...